[Federal Register: June 29, 2005 (Volume 70, Number 124)]
[Rules and Regulations]
[Page 37249-37254]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr29jn05-1]
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Rules and Regulations
Federal Register
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DEPARTMENT OF AGRICULTURE
Animal and Plant Health Inspection Service
7 CFR Part 301
[Docket No. 03-059-3]
Mexican Fruit Fly; Interstate Movement of Regulated Articles
AGENCY: Animal and Plant Health Inspection Service, USDA.
ACTION: Final rule.
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SUMMARY: We are amending the Mexican fruit fly regulations by removing
a provision that allows regulated articles to be moved interstate from
a regulated area without a certificate or limited permit if they are
moved into States other than commercial citrus-producing States.
Additionally, we are amending the regulations to remove references to
quarantined States and to refer to regulated areas as quarantined
areas. We are also making other changes to the regulations, including
clarifying that an entity requiring the services of an inspector is
responsible for the costs of services performed outside of normal
business hours. These actions are necessary to prevent the interstate
spread of Mexican fruit fly and make the Mexican fruit fly regulations
more consistent with our other domestic fruit fly regulations.
DATES: Effective July 29, 2005.
FOR FURTHER INFORMATION CONTACT: Mr. Wayne Burnett, National Program
Manager, Pest Detection and Management Programs, PPQ, APHIS, 4700 River
Road Unit 134, Riverdale, MD 20737-1236; (301) 734-4387.
SUPPLEMENTARY INFORMATION:
Background
The Mexican fruit fly regulations, contained in 7 CFR 301.64
through 301.64-10 (referred to below as the regulations) were
established to prevent the spread of the Mexican fruit fly to
noninfested areas of the United States. The regulations impose
restrictions on the interstate movement of regulated articles from
regulated areas.
On February 18, 2004, we published in the Federal Register (69 FR
7607-7611, Docket No. 03-059-1) a proposal to amend the regulations by
removing a provision that allows regulated articles to be moved
interstate from a regulated area without a certificate or limited
permit if they are moved into States other than commercial citrus-
producing States. Additionally, we proposed to amend the regulations to
remove references to quarantined States and to refer to regulated areas
as quarantined areas. We also proposed to make other changes to the
regulations, including clarifying that an entity requiring the services
of an inspector is responsible for the costs of services performed
outside of normal business hours.
We solicited comments concerning our proposal for 60 days ending
April 19, 2004. We subsequently extended the deadline for comments
until May 17, 2004, in a document published in the Federal Register on
April 15, 2004 (69 FR 19950, Docket No. 03-059-2). We received 10
comments by the close of the extended comment period. They were from
State government officials, growers, industry associations, and an
attorney. One commenter strongly supported the proposal, while the
remaining nine commenters raised specific issues or objections. They
are discussed below by topic.
Pest Pathways and Hosts
Three commenters stated that a pest risk assessment should first be
prepared relative to the potential spread of Mexican fruit fly from
Texas into States other than commercial citrus-producing States.
We do not believe a pest risk assessment is necessary in this case
since Mexican fruit fly hosts are well known and known to be present in
States other than commercial citrus-producing States. For these
reasons, we did not find that a specific pest risk assessment was
necessary to support our proposal.
In 2001, we prepared a document entitled ``Identification of
Susceptible Areas for the Establishment of Anastrepha spp. Fruit Flies
in the United States and Analysis of Selected Pathways'' (Sequeira, R.,
L. Millar, and D. Bartels 2001) in connection with another rule. In
that document, we thoroughly catalogue and analyze the risks associated
with the shipment of potential Mexican fruit fly hosts, including
citrus, from infested areas. The document is available on the Internet
at http://www.aphis.usda.gov/ppq/avocados/ISA.pdf.
One commenter said that northern States are not at risk for Mexican
fruit fly infestation because of their cooler climates. The commenter
further stated that the State of Texas is located at the northernmost
extreme of the Mexican fruit fly's potential habitat.
While it is true that the Mexican fruit fly cannot exist year-round
in northern States, there is potential for Mexican fruit fly survival
in all States, particularly during the spring and summer months.
Further, fruit found on the list of regulated articles at Sec. 301.64-
2 may be present in all States between April 15 and October 30. If
infested regulated articles are shipped during this timeframe from a
quarantined area into a State other than a commercial citrus-producing
State where alternate Mexican fruit fly hosts are grown, those other
host fruits could potentially become infested and subsequently be
shipped to any State, including commercial citrus-producing States,
without restriction, thereby increasing the risk of Mexican fruit fly
being spread to an area with a climate more favorable to the year-round
establishment of that pest.
The quarantined area in the State of Texas is located in the Rio
Grande Valley, in the southern portion of the State. Conditions exist
that could support damaging populations of Mexican fruit fly in the
southern parts of Alabama, Arizona, California, Florida, Georgia,
Louisiana, and Mississippi as well. With the exception of certain
portions of Florida, all of these susceptible areas lie north of the
quarantined area in Texas. Further, the States of Alabama, Georgia, and
Mississippi, where conditions are such that Mexican fruit fly could
become established, are not listed as commercial citrus-producing
States at Sec. 301.64(b).
One commenter stated that the Animal and Plant Health Inspection
Service (APHIS) needs to fully develop scientifically based lists of
Mexican fruit
[[Page 37250]]
fly hosts before proposing such a change to the regulations.
There is a comprehensive list of Mexican fruit fly hosts at Sec.
301.64-2(a). This represents our most complete and scientific
determination of the various Mexican fruit fly host fruits.
Treatments
Two commenters stated that the proposed change to the treatment and
shipping requirements will cause sizable economic harm to producers and
treatment facilities as a result of the inability of fumigation
facilities to expand sufficiently to meet demand for their services.
We agree that this is a legitimate concern; however, methyl bromide
fumigation is not the only treatment option available to producers of
citrus and other regulated articles located in quarantined areas. The
regulations at Sec. 301.64-10 list several approved treatment options
for citrus and other regulated articles from quarantined areas. They
are as follows:
Cold treatment in accordance with 7 CFR part 305;
A field, grove, or area located within the quarantined
area but outside the infested core area must receive regular treatments
with either malathion or spinosad bait spray. These treatments must
take place at 6- to 10-day intervals, starting a sufficient time before
harvest (but not less than 30 days before harvest);
High temperature forced air in accordance with 7 CFR part
305; or
Irradiation, carried out in accordance with the provisions
listed at Sec. 301.64-10(g).
We are aware that facilities for cold treatment, forced air
treatment, and irradiation are not currently available in the three
Texas counties currently quarantined because of Mexican fruit fly
(i.e., Cameron, Hidalgo, and Willacy Counties), however the option of
premises treatments with malathion or spinosad bait spray is available
and serves to relieve the citrus industry of the economic burden of
building additional fumigation chambers.
One commenter questioned why, in discussing the amount of citrus
that may require treatment from year to year, APHIS assumes an average
infestation rate instead of considering each infestation individually.
It is impossible to predict the amount of citrus that will require
treatment from year to year due to the variability of Mexican fruit fly
infestations. We acknowledge that this infestation rate may differ from
year to year, but historical data shows that, on average, 5 to 10
percent of citrus will require treatment due to Mexican fruit fly
infestation. Treatments based on the average infestation rate could
cost the citrus industry $40,000 to $80,000, which is less than 0.5
percent of the value of the $20 million worth of citrus that will
require treatment. The worst case scenario, or 100 percent infestation,
would cost the citrus industry $806,000 in treatment costs. This amount
represents less than 4 percent of the value of the $20 million worth of
citrus that would require treatment.
The commenter also stated that there was a need to investigate the
potential impacts of the rule on the organic citrus industry in Texas.
We have already considered these impacts to organic citrus
producers. They are included in our estimation of the total impact to
the Texas citrus industry ($40,000 to $80,000 annually). Since
fumigation is not an available treatment option for organic producers
and we assume the average infestation rate of 5 to 10 percent,
treatment of organic citrus would cost approximately $12,000 to $25,000
annually for premises treatment using spinosad bait spray.
We consider ``significant impact'' to mean that the cost of a given
action is equal to or greater than the small business's profit margin
(5 to 10 percent of annual sales). By these standards, given the size
and profitability of the citrus industry in Texas, this action does not
represent a significant impact on a substantial number of small
entities.
Two commenters added that, apart from the associated economic
issues, Texas packinghouses will not be able to expand their operations
adequately to fumigate citrus moving interstate, as prescribed in the
regulations, because many of these entities are located near urban
areas where air quality standards prohibit such expansion. One
commenter additionally stated that fumigation degrades the quality of
the fruit, thus affecting its marketability, and that some markets will
not accept fruit that has undergone fumigation.
As previously stated, methyl bromide fumigation is not the only
treatment option available to producers of citrus and other regulated
articles located in quarantined areas. The alternative treatments
available are listed above.
Regulatory Procedure
One commenter said that changes should not be made to the
regulations solely in response to possible infestation of other hosts
or transshipment. The commenter pointed out that no past infestations
have occurred in commercial citrus-producing States as a result of
regulated articles that originated in Texas.
The changes we are making to the regulations are precautionary in
nature. As stated in the proposed rule, all of our other fruit fly
regulations in 7 CFR part 301 (e.g., Mediterranean fruit fly
[Sec. Sec. 301.78-301.78-10], Oriental fruit fly [Sec. Sec. 301.93-
301.93-10], etc.), have interstate shipment requirements identical to
those listed in this document for Mexican fruit fly. In the past
several years, infestations of Mexican fruit fly in California and
Florida have emphasized the need for revision to the regulations.
One commenter stated that the current practice of marking
containers as non-eligible for shipment to commercial citrus-producing
States is sufficient to prevent transshipment.
We disagree with this assessment. According to the California
Department of Food and Agriculture, fruit repacked in Nevada is
routinely intercepted at border inspection stations in California.
Mexican fruit fly larvae have also been discovered in grapefruit that
had been purchased in Oregon and moved into California. We are also
concerned with mailed containers of potentially infested fruits,
particularly those used in gourmet and specialty fruit packages, since
our regulations have not covered some fruits shipped by such retailers.
The amended regulations are intended to eliminate those potential pest
pathways.
One commenter pointed out that different regulatory processes are
necessary given the differing circumstances in the growing areas within
quarantined areas in Texas. The commenter argued that the regulatory
system in Texas must necessarily differ from those in other States such
as California, Florida, and Arizona where temporary infestations of
Mexican fruit fly have historically occurred given that the quarantined
areas in Texas are adjacent to areas in Mexico that are continually
infested with many types of fruit fly, including Mexican fruit fly.
As previously stated in this document and in the proposed rule, the
aim of this action is to make our Mexican fruit fly regulations
equivalent to our other fruit fly regulations. The pest risk associated
with the movement of regulated articles from those areas of Texas where
Mexican fruit fly is established is equivalent to the pest risk
associated with the movement of regulated articles from areas in
California, Florida, or other States where Mexican fruit fly or other
fruit flies may have been introduced. We have found that a uniform
approach to quarantine and treatment is most effective in preventing
[[Page 37251]]
the spread of various types of injurious fruit flies to noninfested
areas of the United States.
One commenter said that the APHIS-approved preventative release
program using sterile insect technique that is being used within the
quarantined areas in Texas is sufficient to prevent the spread of
Mexican fruit fly to those States that are not commercial citrus-
producing States.
The preventative release programs (PRP) described by the commenter
are important tools in our efforts to protect noninfested areas from
Mexican fruit fly infestation. The current PRP in Texas is part of a
systems approach that is designed to mitigate the risk associated with
the movement of host commodities. However, at the current sterile fly
release levels, the PRP alone does not provide sufficient protection
against the spread of the Mexican fruit fly. APHIS has submitted a
request for increased funding for these sterile release programs as
part of the Agency's 2006 budget in an effort to increase the sterile
release rates in order to eradicate the Mexican fruit fly from Texas.
The procedure outlined in this document provides necessary and
immediate protection against the spread of Mexican fruit fly to
noninfested areas of the United States.
Mexican Citrus
Two commenters stated that we should focus our efforts primarily on
bringing Mexico's fruit fly programs into equivalency with U.S.
programs. An additional commenter said that no importation of citrus
from Mexico or any other country should be allowed unless the
phytosanitary programs in the country of origin are equivalent to those
used in quarantined areas of the United States.
We have developed a preventative release program with sterile
insect technique in Mexico. The United States Department of Agriculture
(USDA), in cooperation with the Mexican Government, has initiated a
sterile fly release program along the Rio Grande River as well as in
nearby urban areas. The program features consolidated U.S./Mexican
recordkeeping, which will enable us to more effectively synchronize our
Mexican fruit fly programs on both sides of the U.S./Mexico border.
In addition, we have drafted a series of foreign fruit fly systems
approach guidelines that are based primarily on our domestic fruit fly
programs. This document is a draft intended for broad ranging
international consideration. It is available on the Internet at http://www.aphis.usda.gov/ppq/manuals/pdf_files/FF%20Guidelines.pdf
.
Further, available treatment options make it possible for fruit to
be exported to the United States from countries without equivalent
eradication programs where fruit flies are present. Those importation
standards and procedures are described in our regulations governing the
importation of fruits and vegetables at 7 CFR 319.56-2(e) through (h)
and 319.56-2(j) through (k).
One commenter objected to our proposal as a result of his
understanding of consideration we may be giving to proposals from
Argentina, Chile, and Mexico to ship untreated citrus to States other
than citrus-producing States, as well as his understanding that we are
poised to grant these requests.
When fruit flies are the only pest of concern, shipments of citrus
from any citrus-producing country or area could be eligible for
importation in two ways: Fruit from non-fruit-fly-free areas may be
imported subject to approved treatments, as mentioned previously, and
fruit from areas that we have determined to be free of a number of
fruit flies, including Mexican fruit fly, may be imported without
treatment. Under our import regulations at 7 CFR 319.56-2(e) through
(g), fruits and vegetables, except those restricted to certain
countries and districts by special quarantine, may be imported under a
permit issued once the Administrator determines that certain conditions
in the country of origin have been met. Among other things, the
Administrator must determine that the fruit or vegetable is being
imported from an area that is free of the pest or pests in accordance
with the criteria for establishing freedom found in International
Standard for Phytosanitary Measures Publication No. 4, ``Requirements
for the Establishment of Pest Free Areas,'' which is incorporated by
reference into the regulations at 7 CFR 300.5. APHIS must approve the
survey protocol used to determine freedom from the pests of concern.
We are considering no such proposals as described by the commenter
from Argentina or Chile. However, we are considering a proposal that
would allow untreated citrus from specified areas in Mexico to enter
into areas of the United States that are quarantined because of Mexican
fruit fly for processing. However, under the proposal we are
considering, those areas in Mexico would be required to be operating
under a systems approach for Mexican fruit fly that is the same as our
domestic programs. Any action on this proposal would come only after we
published a proposed rule for public comment in the Federal Register.
Miscellaneous
One commenter characterized the changes we proposed as ``removing
restrictions'' and stated that there is a need instead for additional
restrictions, including more quarantine stations.
We disagree with the commenter's characterization of the changes we
are making in this final rule. These changes will provide more, not
less, protection against the interstate spread of the Mexican fruit
fly.
Although we are making no changes in this final rule in response to
the comments discussed above, this final rule does not include two
editorial changes that had been part of the proposed rule.
Specifically, we had proposed to update an address that appeared in two
places in Sec. 301.64-10(g); because that address has been changed in
another final rule, it is not necessary to follow through with the
proposed change in this final rule.
Therefore, for the reasons given in the proposed rule and in this
document, we are adopting the proposed rule as a final rule with the
changes discussed in this document.
Executive Order 12866 and Regulatory Flexibility Act
This rule has been reviewed under Executive Order 12866. The rule
has been determined to be not significant for the purposes of Executive
Order 12866 and, therefore, has not been reviewed by the Office of
Management and Budget.
We are amending the Mexican fruit fly regulations by removing a
provision that allows regulated articles to be moved interstate from a
regulated area without a certificate or limited permit if they are
moved into States other than commercial citrus-producing States.
Additionally, we are amending the regulations to remove references to
quarantined States and to refer to regulated areas as quarantined
areas. We are also making other changes to the regulations, including
clarifying that an entity requiring the services of an inspector is
responsible for the costs of services performed outside of normal
business hours. These actions are necessary to prevent the interstate
spread of Mexican fruit fly and make the Mexican fruit fly regulations
more consistent with our other domestic fruit fly regulations.
The Regulatory Flexibility Act requires that agencies specifically
consider the economic effects of their rules on small entities. We
expect that the entities most likely to be affected by the changes will
be citrus growers and
[[Page 37252]]
packinghouses located within quarantined areas. Currently, only
Cameron, Hidalgo, and Willacy Counties in Texas are designated as
quarantined areas in the regulations. In 2002, the latest census year,
citrus fruit was produced on 1,053 farms in Texas. Approximately 98
percent of citrus farms had gross sales of less than $750,000 and thus
are considered small entities according to the size standards set by
the Small Business Administration (SBA).
Impact on Affected Industries in Texas
As noted previously, three counties in the Lower Rio Grande Valley
of Texas--Cameron, Hidalgo, and Willacy--are designated as quarantined
areas. The Mexican fruit fly protocol for Texas calls for a trapping
program to monitor those areas; under the protocol, the detection of
one wild Mexican fruit fly triggers the application of bait sprays or
the aerial release of sterile flies around the fly capture. Fruit
destined for shipment to commercial citrus-producing States must be
certified as free of the Mexican fruit fly, either through inspection
or following the application of an authorized post-harvest treatment.
Within the quarantined area of Texas there are approximately 540
citrus growers operating on 30,000 acres producing $31 million worth of
citrus annually, and 5 packinghouses.\1\ Seventy five percent of the
citrus growers produce grapefruit while the remaining 25 percent
produce oranges. Approximately 80 percent of all citrus growers use one
of the five packinghouses, while the remaining 20 percent sell their
citrus locally. The five packinghouses currently ship approximately 35
percent of the citrus to California and 65 percent to States that are
not commercial citrus-producing States.\2\ Currently only 5 to 10
percent of all citrus shipped annually to citrus-producing regions
(mainly California) are treated for Mexican fruit flies using methyl
bromide fumigation. The cost of treatment generally comprises less than
4 percent of the citrus wholesale value.\3\
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\1\ Texas Crop Production Summary with Values 2001-2002. NASS
USDA report, Jerry Ramirez.
\2\ John McClung, Texas Citrus Growers Association. Personal
communication, June 28, 2003.
\3\ It is estimated that it costs $0.25 to treat a 40-pound
carton of citrus with a worth of approximately $7.50 to $9.00.
Source: Robert Martin, Texas Citrus packing facility owner. Personal
communication, June 28, 2003.
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This rule requires that all citrus and other host crops moved
interstate to States that are not commercial citrus-producing States be
accompanied by a limited permit or certificate issued by an APHIS
inspector, just as is currently required for host crops moved to
commercial citrus-producing States. The provisions of this rule will
primarily affect the packinghouses in the quarantined area in that any
overtime cost that is incurred by APHIS inspectors for supervising
post-harvest treatments at the packinghouses will now have to be paid
for by owners of the facilities. Currently, as a result of the small
number of inspectors working overtime, this cost is borne by APHIS. It
is estimated that one APHIS inspector will be required at each of the
five Texas packinghouses for approximately 16 weeks during the citrus
harvest period. APHIS has estimated that each of these inspectors will
work approximately 53 hours in overtime supervision during this 16-week
period. At $28.11 per hour, each citrus packinghouse will be
responsible for, on average, $1,500 in overtime charges for the
inspectors. Assuming these charges stay constant with more stringent
interstate movement requirements, we estimate that the five Texas
packinghouses will incur approximately $7,500 per year in total
overtime charges for citrus fruits moving to commercial citrus-
producing States.
Similarly, additional charges may also be incurred by producers or
packinghouses for the services of an APHIS inspector in monitoring the
post-harvest treatment of citrus for shipment to States other than
commercial citrus-producing States if services are provided beyond the
normal working hours. If, as estimated above, the overtime costs
associated with the interstate movement of the 35 percent of fruit
moving to commercial citrus-producing States would be $7,500, then a
rough estimate of the overtime charges that may be incurred in
connection with the interstate movement of the remaining 65 percent of
fruit would be $14,000. The total overtime cost to the producers or
packinghouses for APHIS supervision will be approximately $21,500 per
year.
Producers of host crops may also incur additional costs for post-
harvest treatment if they wish to send their fruit to States other than
commercial citrus-producing States and their fruit is found to be
infested. Under the rule, host crops moving interstate to such States,
like fruit moved to commercial citrus-producing States, will be subject
to treatment if found to be infested with Mexican fruit flies. The
current fumigation facilities in place can treat approximately 5 to 20
percent of the citrus moving interstate. The amount of fruit that may
require treatment as a condition of movement to States other than
commercial citrus-producing States is not known and will vary with the
infestation levels. However, assuming that (1) 65 percent of the $31
million worth of citrus is shipped to these States, (2) that the
proportion of these fruits that would require treatment would be the
same percentage as that of fruits currently shipped to commercial
citrus-producing States (about 5-10 percent), and (3) that treatment
costs comprise less than 4 percent of the wholesale value of citrus,
the additional cost of treatment to producers is estimated to be
$40,000 to $80,000. In sum, based on past infestation rates, the impact
of this rule on the Texas citrus industry could range between $61,500
and $101,500 in additional yearly treatment costs and APHIS overtime
costs for pre- and post-harvest monitoring (table 1).
Table 1.--Possible Texas Overtime and Treatment Costs
------------------------------------------------------------------------
Yearly costs
------------------------------------------------------------------------
Current pre- and post-harvest APHIS monitoring (for $7,500
movement to commercial citrus-producing States)....
Future pre- and post-harvest APHIS monitoring (for 14,000
movement of citrus to non-commercial citrus-
producing States)..................................
Treatment (methyl bromide)\1\....................... 40,000-80,000
-------------------
Total cost...................................... 61,500-101,500
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\1\ For some producers, pre-harvest premises treatment with either
malathion or spinosad bait spray is required under Sec. 301.64-
10(c); this pre-harvest treatment eliminates the need for post-harvest
treatment with methyl bromide. The cost of malathion treatment is
$5.50 per acre, with an average of 20 treatments required (a total per
acre cost of $110). The cost of spinosad treatment is $18.50 per acre,
with an average of 20 treatments required (a total per acre cost of
$368).
[[Page 37253]]
Summary
This rule could potentially have a negative economic impact on the
Texas citrus industry, as producers who wish to move regulated
articles, including citrus fruit, to any State--not just commercial
citrus-producing States--will now have to obtain a certificate or
limited permit before moving the articles interstate. Producers and/or
packinghouses will have to incur the cost of treatment along with
overtime costs incurred by APHIS in monitoring treatments. The extent
of the impact will depend on the level of pest infestation.
It is expected that the percentage of citrus fruits requiring
treatment for movement to States that are not commercial citrus-
producing States would be the same as that of fruits currently shipped
to commercial citrus-producing States (i.e., 5-10 percent). The impact
on the industry is expected to be small ($40,000 to $80,000 in annual
treatment costs), as the treatment costs comprise less than 4 percent
of the wholesale value of the citrus and only 5 to 10 percent of the
citrus requires treatment.\4\
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\4\ It is estimated that 65 percent of the $31 million worth of
Texas citrus produced is transported to States that are not
commercial citrus producing States. Approximately 5 to 10 percent of
the $20.15 million worth of fruit may require treatment based on
past infestation levels. The total treatment cost is about 4 percent
of the $1 to $2 million, or $40,000 to $81,000.
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The Texas citrus industry will also have to incur the estimated
$7,500 per year in overtime costs associated with PPQ treatment
supervision at the five packinghouses for fruit moved to commercial
citrus-producing States. These costs will either be absorbed by the
industry or passed on to consumers of the fruit. Additionally, it is
estimated that packinghouses for fruit moved to States other than
commercial citrus-producing States could also incur overtime costs of
$14,000. In sum, based on past infestation rates, the impact of this
proposed rule on the Texas citrus industry could range between $61,500
and $101,500 in additional treatment costs and overtime charges for
APHIS pre- and post-harvest monitoring.
The forgone costs or benefits of averting a Mexican fruit fly
outbreak are substantial. The establishment of the Mexican fruit fly in
the United States could cost producers and exporters about $900 million
in losses annually.\5\ This amount is comprised of (1) field control
costs, (2) field losses after malathion use, (3) cost of quarantine
compliance treatments, and (4) losses due to quarantine treatment
damage. The costs associated with the additional restrictions on the
interstate movement of regulated articles are surpassed by the benefits
of averting a large scale Mexican fruit fly outbreak.
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\5\ Lottie Erikson (2000). ``Economic Analysis of Options for
Eradicating Mexican Fruit Fly (Anastrepha ludens) from the Lower Rio
Grande Valley of Texas.'' Policy and Program Development, APHIS,
USDA.
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Under these circumstances, the Administrator of the Animal and
Plant Health Inspection Service has determined that this action would
not have a significant economic impact on a substantial number of small
entities.
Executive Order 12372
This program/activity is listed in the Catalog of Federal Domestic
Assistance under No. 10.025 and is subject to Executive Order 12372,
which requires intergovernmental consultation with State and local
officials. (See 7 CFR part 3015, subpart V.)
Executive Order 12988
This final rule has been reviewed under Executive Order 12988,
Civil Justice Reform. This rule: (1) Preempts all State and local laws
and regulations that are inconsistent with this rule; (2) has no
retroactive effect; and (3) does not require administrative proceedings
before parties may file suit in court challenging this rule.
Paperwork Reduction Act
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.), the information collection or recordkeeping requirements
included in this rule have been approved by the Office of Management
and Budget (OMB) under OMB control number 0579-0238.
Government Paperwork Elimination Act Compliance
The Animal and Plant Health Inspection Service is committed to
compliance with the Government Paperwork Elimination Act (GPEA), which
requires Government agencies in general to provide the public the
option of submitting information or transacting business electronically
to the maximum extent possible. For information pertinent to GPEA
compliance related to this rule, please contact Mrs. Celeste Sickles,
APHIS' Information Collection Coordinator, at (301) 734-7477.
List of Subjects in 7 CFR Part 301
Agricultural commodities, Plant diseases and pests, Quarantine,
Reporting and recordkeeping requirements, Transportation.
PART 301--DOMESTIC QUARANTINE NOTICES
0
Accordingly, we are amending 7 CFR part 301 as follows:
0
1. The authority citation for part 301 continues to read as follows:
Authority: 7 U.S.C. 7701-7772; 7 CFR 2.22, 2.80, and 371.3.
Section 301.75-15 also issued under Sec. 204, Title II, Pub. L.
106-113, 113 Stat. 1501A-293; sections 301.75-15 and 301.75-16 also
issued under Sec. 203, Title II, Pub. L. 106-224, 114 Stat. 400 (7
U.S.C. 1421 note).
0
2. Section 301.64 is revised to read as follows:
Sec. 301.64 Restrictions on interstate movement of regulated
articles.
No person shall move any regulated article interstate from any
quarantined area except in accordance with this subpart.1,2
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\1\ Any properly identified inspector is authorized to stop and
inspect persons and means of conveyance, and to seize, quarantine,
treat, apply other remedial measures to, destroy, or otherwise
dispose of regulated articles as provided in sections 414, 421, and
434 of the Plant Protection Act (7 U.S.C. 7714, 7731, and 7754).
\2\ Regulations concerning the movement of plant pests,
including live Mexican fruit flies, in interstate commerce are
contained in part 330 of this chapter.
0
3. Section 301.64-1 is amended by removing the definition of regulated
area
[[Page 37254]]
and by adding, in alphabetical order, definitions for departmental
permit and quarantined area to read as follows:
Sec. 301.64-1 Definitions.
* * * * *
Departmental permit. A document issued by the Administrator in
which he or she affirms that the interstate movement of the regulated
article identified on the document is for scientific or experimental
purposes and that the regulated article is eligible for interstate
movement in accordance with Sec. 301.64-4(c).
* * * * *
Quarantined area. Any State, or any portion of a State, listed in
Sec. 301.64-3(c) or otherwise designated as a quarantined area in
accordance with Sec. 301.64-3(b).
* * * * *
Sec. 301.64-3 [Amended]
0
4. Section 301.64-3 is amended as follows:
0
a. In the section heading, by removing the word ``Regulated'' and
adding the word ``Quarantined'' in its place.
0
b. In paragraph (a), introductory text, by removing the word
``quarantined'' each time it appears, and by removing the word
``regulated'' each time it appears and adding the word ``quarantined''
in its place.
0
c. In paragraph (a)(2), by removing the word ``regulated'' and adding
the word ``quarantined'' in its place.
0
d. In paragraph (b), by removing the word ``quarantined'', by removing
the word ``nonregulated'' both times it appears and adding the word
``nonquarantined'' in its place, and by removing the words ``regulated
area'' and adding the words ``quarantined area'' in their place.
0
e. In paragraph (c), introductory text, by removing the word
``regulated'' and adding the word ``quarantined'' in its place.
0
5. In Sec. 301.64-4, the section heading, the introductory text of the
section, and paragraph (b) are revised and a new paragraph (c) and an
OMB citation at the end of the section are added to read as follows:
Sec. 301.64-4 Conditions governing the interstate movement of
regulated articles from quarantined areas.
Any regulated article may be moved interstate from a quarantined
area only if moved under the following conditions:\3\
---------------------------------------------------------------------------
\3\ Requirements under all other applicable Federal domestic
plant quarantines and regulations must also be met.
---------------------------------------------------------------------------
* * * * *
(b) Without a certificate or limited permit, if:
(1) The regulated article originated outside the quarantined area
and is either moved in an enclosed vehicle or is completely enclosed by
a covering adequate to prevent access by Mexican fruit flies (such as
canvas, plastic, or closely woven cloth) while moving through the
quarantined area; and
(2) The point of origin of the regulated article is clearly
indicated on the waybill, and the enclosed vehicle or the enclosure
that contains the regulated article is not opened, unpacked, or
unloaded in the quarantined area; and
(3) The regulated article is moved through the quarantined area
without stopping except for refueling or for normal traffic conditions,
such as traffic lights or stop signs; or
(c) Without a certificate or limited permit, if the regulated
article is moved:
(1) By the United States Department of Agriculture for experimental
or scientific purposes;
(2) Pursuant to a departmental permit issued by the Administrator
for the regulated article;
(3) Under conditions specified on the departmental permit and found
by the Administrator to be adequate to prevent the spread of Mexican
fruit fly; and
(4) With a tag or label bearing the number of the departmental
permit issued for the regulated article attached to the outside of the
container of the regulated article or attached to the regulated article
itself if not in the container.
(Approved by the Office of Management and Budget under control
number 0579-0238).
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6. In Sec. 301.64-6(a), footnote 6 is revised to read as follows:
Sec. 301.64-6 Compliance agreement and cancellation thereof.
(a) * * * \6\
----------
\6\ Compliance agreement forms are available without charge from
local offices of the Animal and Plant Health Inspection Service,
Plant Protection and Quarantine. Local offices are listed in
telephone directories, or on the Internet at http://www.aphis.usda.gov/ppq/
.
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7. In Sec. 301.64-7(a), footnote 7 is revised to read as follows:
Sec. 301.64-7 Assembly and inspection of regulated articles.
(a) * * * \7\
----------
\7\ Inspectors are assigned to local offices of Plant Protection
and Quarantine, which are listed in telephone directories.
Information concerning such local offices may also be obtained on
the Internet at http://www.aphis.usda.gov/ppq/.
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8. Section 301.64-9 is revised to read as follows:
Sec. 301.64-9 Costs and charges.
The services of an inspector during normal business hours (8 a.m.
to 4:30 p.m., Monday through Friday, except holidays) will be furnished
without cost. The user will be responsible for all costs and charges
arising from inspection and other services provided outside normal
business hours.
Sec. 301.64-10 [Amended]
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9. In Sec. 301.64-10, paragraph (g)(9) is amended by removing the word
``Mediterranean'' and adding the word ``Mexican'' in its place.
Done in Washington, DC, this 23rd day of June 2005.
Elizabeth E. Gaston,
Acting Administrator, Animal and Plant Health Inspection Service.
[FR Doc. 05-12814 Filed 6-28-05; 8:45 am]
BILLING CODE 3410-34-P